17 March 1998
Source: http://zen.pratt.edu/info/pub/itar/itar_hr_govop_hearing.transcript

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		[Pages 260-298, excerpted from]

		THE GOVERNMENT'S CLASSIFICATION OF PRIVATE IDEAS


		HEARINGS BEFORE A SUBCOMMITTEE OF THE
		COMMITTEE ON GOVERNMENT OPERATIONS
		HOUSE OF REPRESENTATIVES

			NINETY-SIXTH CONGRESS
			SECOND SESSION

			FEBRUARY 28; MARCH 20; AUGUST 21, 1980

	Printed for the use of the Committee on Government Operations

		U.S. Government Printing Office
		        Washington: 1981

260

[[skipping half a page of non-ITAR-related transcript]]

Mr. INGRAM. Any thoughts the Department might have further on 
that would be appreciated.
	Let me turn for a minute to the Department of State's 
International Traffic in Arms Control Regulations, commonly known 
as ITAR. On May 11, 1978, the Office of General Counsel of the 
Department of Justice issued a legal opinion on the constitutionality 
under the First Amendment of ITAR restrictions on public 
cryptography. The opinion was addressed to Dr. Frank Press, who is 
the Science Adviser to the President.
	It concluded that,

	It is our view that the existing provisions of the ITAR are 
	Unconstitutional insofar as they establish a prior restraint on 
	disclosure of cryptographic ideas and information developed by 
	scientists and mathematicians in the private sector.

Your statement does not refer to the OLC opinion and its finding of 
unconstitutionality of portions of the ITAR. Could you explain why 
your statement does not include a reference to that opinion?

Mr. FOY. There was no intention on my part to obscure or hide the 
fact that we issued an opinion. Our opinion was, of course, referred to 
in your inquiry to the Department.
	The remarks in the written statement are addressed to two 
things that happened after our opinion was issued. If I may back up 
for a minute and address the opinion itself, the opinion was directed 
at the broad issue that was raised by the possibility of a broad 
application of the ITAR regulation. The ITAR regulation is written so 
broadly that it could be applied in cases in which very serious first 
Amendment problems would be presented.
	What happened after our opinion issued was, first, that the 
ninth circuit, in a case called Edler, sharply limited the scope of the 
ITAR regulation.  It said that an individual cannot be punished for 
failing to comply with the licensing procedure unless, in effect, he 
knowingly participated in a combination of some sort whereby he 
provided technical assistance to a foreign enterprise or group 
knowing that that assistance was going to be used in the 
manufacture or use of weapons of war.
	That is very narrow interpretation of that regulation, and I 
think it goes a long way to curing the constitutional problems that 
would be created by an application of the Licensing system to 
routine publications of scientific ideas in this country.
	The second thing that has happened since our opinion is that 
the State Department itself, through its office of Munitions Control, 
has issued an interpretation of the regulation that parallels the ninth 
circuit's view and narrows the effect, ameliorating to some extent the 
first amendment problems created by the regulation on its face.  
That is the state of things as I see it.

   Mr. INGRAM.  What form has the State Department's interpretation 
taken?  Has there been a formal change of the ITAR regulation?

   Mr. FOY.  The regulation is still in the form it was in when our 
opinion was issued.  The Office of Munitions control has issued a 
bulletin that explains how it understands the regulation.  In fact, it is 
an interpretation of its regulation.  It is a formal public document 
and I will be happy to provide it for the record.

   Mr. INGRAM.  If you would, please do.

   Mr. PREYER.  Without objection, a copy of the bulletin will be 
included in the record at this point.

   [The material follows.]



 

                                262



	DEPARTMENT OF STATE
	Washington,  D.C. 20520

          MUNITIONS CONTROL NEWSLETTER

                                             NO. 80
                                             2/80

           CRYPTOGRAPHY/TECHNICAL DATA

Concern has been voiced that ITAR provisions relating to the export 
of technical data as applied to cryptologic equipment can be so 
broadly interpreted as to restrict scientific exchanges of basic 
mathematical and engineering research data. The Office of Munitions 
Control wishes to clarify the application of the technical data 
provisions of Section 121.01, Category XVIII, of the ITAR as applied 
to equipment found in Categories XI(c) and XIIItb) of the
Munitions List.

	     Cryptologic technical data for which a license is
required under Section 121.01, Category XVIII, is interpreted by this 
office with respect to information relating to Munitions List items in 
Categories XI(c) and XIII(b) to include only such information as is 
designed or intended to be used, or which reasonably could be 
expected to be given direct application, in the design, production, 
manufacture, repair, overhaul, processing, engineering, development,
operation, maintenance or reconstruction of items in such
categories. This interpretation includes, in addition to engineering 
and design data, information designed or reasonably expected to be 
used to make such equipment more effective, such as encoding or 
enciphering techniques and systems, and communications or signal 
security techniques and guidelines, as well as other cryptographic 
and cryptanalytic methods and procedures. It does not include 
general mathematical, engineering or statistical information, not 
purporting to have or reasonably expected to be given direct 
application to equipment in such categories. It does not include basic
theoretical research data. It does, however, include algorithms and 
other procedures purporting to have advanced cryptologic 
application.

	     The public is reminded that professional and academic
presentations and informal discussions, as well as demonstrations of 
equipment, constituting disclosure of cryptologic technical data to 
foreign nationals are prohibited without the prior approval of this 
office. Approval is not required for publication of data within the 
United States as described in Section 125.11(a)(1). Footnote 3 to 
section 125.11 does not establish a prepublication review 
requirement.



	                        5


263

The interpretation set forth in this newsletter should exclude from 
the licensing provisions of the ITAR most basic scientific data and 
other theoretical research information, except for information 
intended or reasonably expected to have a direct cryptologic 
application. Because of concerns expressed to this office that licensing 
procedures for proposed disclosures of cryptologic technical data 
contained in professional and academic papers and oral presentations 
could cause burdensome delays in exchanges with foreign scientists, 
this office will expedite consideration as to the application of ITAR to 
such disclosures. If requested, we will, on an expedited basis provide 
an opinion as to whether any proposed disclosure, for other than 
commercial purposes, of information relevant to cryptology, would 
require licensing under the ITAR.




				/s/ William B. Robinson
                           	William B. Robinson, Director
                           	Office of Munitions Control



Mr. INGRAM. The bottom line is that the regulations themselves have 
not been amended.

Mr. FOY. That is correct.

Mr. INGRAM. Let me call your attention to a letter of August 29, 
1978, from your colleague, Larry Hammond, Deputy Assistant 
Attorney General, Office of Legal Counsel, to Col. Wayne Kay, Senior 
Policy Analyst, Office of Science and Technology Policy, Executive 
Office of the President.
	The letter discusses the Edler case that you mentioned, which 
did present a first amendment challenge to the Munitions Control Act 
of 1954 and the ITAR.  As Hammond notes, his letter to Kay is a 
followup to the Department's memorandum of 3 months previous to 
Dr. Press on public cryptography and the ITAR. Hammond goes on to 
conclude, at page 2 of his letter,

	While the ninth circuit's decision in Edler is helpful in resolving 
	first amendment issues with respect to blueprints and similar 
	types of technical data used as a basis for producing military 
	equipment, we do not believe that it either resolves the first 
	amendment issues presented by restrictions on the export of 
	cryptographic ideas or eliminates the need to reexamine the 
	ITAR.

[The material follows:]




                                                    264


      August 29, 1978

Colonel Wayne Kay
Senior Policy Analyst
Office of Science and Technology Policy
Washington, DC 20500

Dear Colonel Kay:

	As you may know, the United States Court of Appeals for the 
Ninth Circuit recently decided United States v. Edler, the case 
presenting a First Amendment challenge to the Munitions Control Act 
of 1954 and the ITAR that we discussed in our memorandum to Dr. 
Press on public cryptography. The court, construing the statute and 
regulation narrowly, held both constitutional, but remanded the case 
for a new trial because the trial court had given the provisions an 
overbroad interpretation.

	As interpreted by the Ninth Circuit, the Munitions Control Act 
and accompanying regulations "prohibit only the exportation of 
technical data significantly and directly related to specific articles on 
the [United States] Munitions list." Slip op. at 8. In addition, the 
defendant must know or have reason to know that the recipient of 
technical information would use it to produce or operate Munitions 
List items. Slip op. at 9, 10. This narrow construction, stated the 
court, focuses on the control of conduct and thus does not 
unconstitutionally interfere with protected speech or establish a 
prior restraint. Id.

265

	Application of the Ninth Circuit's formulation to public 
cryptography seems difficult. First, the emphasis of the court on 
technical data directly relevant to the manufacture of arms, see Slip 
op. at 7, is of limited utility where it is the export of technical data 
itself, not of a tangible end product, that is of chief concern to the 
government.  As we understand it, the export of cryptographic 
devices poses far less of a threat to national security than the export 
of sophisticated cryptographic algorithms.

	Moreover, under the Ninth Circuit test, it appears that the 
government would have difficulty prohibiting the export of 
cryptographic information for scientific purposes, since the exporter 
would lack the requisite intent. Yet as a practical matter, as we noted 
in our memorandum, once cryptographic information and techniques 
are made available for scientific purposes, they are available for 
military purposes as well.

	Thus, while the Ninth Circuit's decision is helpful in resolving 
First Amendment issues with respect to blueprints and similar types 
of technical data used as a basis for producing military equipment, 
we do not believe that it either resolves the First Amendment issues 
presented by restrictions on the export of cryptographic ideas or 
eliminates the need to reexamine the ITAR.

	I am enclosing a copy of the Ninth Circuit's opinion in case you 
or the other members of the working group have not yet had an 
opportunity to read it.

                 Sincerely,

                	/s/
		Larry A. Hammond
		Deputy Assistant Attorney General
		Office of Legal Counsel

266

Mr. INGRAM. Your testimony, on the other hand, seems to conclude 
or states that the constitutional issues have somehow disappeared.

Mr. FOY. The constitutional issues have not disappeared if an attempt 
needs to be made to regulate the transmission of cryptographic ideas 
outside the Edler context. What Mr. Hammond was saying, in effect, 
was that the Edler decision has so narrowed the regulation the 
criminal provision that makes the regulation enforceable, that we are 
still left with a problem that raises important constitutional issues.
	That is, how do you regulate the dissemination of important 
and dangerous, say, cryptographic information outside the Edler 
context? That is an issue that needs to be addressed. It is an issue 
that is being addressed in the executive branch right now.

Mr. INGRAM. Again, we have a letter of a year and a half ago from 
Mr. Hammond on behalf of the Department telling the executive 
branch that there is a need to review the ITAR. As you have stated, 
there has been no review or change in the regulation.
	It gets us, I think, to a very fundamental question. That is the 
legal effect of an OLC, Office of Legal Counsel, opinion. Once OLC 
issues an opinion stating that a particular executive branch 
regulation is unconstitutional, what is the legal effect of that opinion?

Mr. FOY. I think that question has two answers. The Office of Legal 
Counsel does two different sorts of things. We give counsel, lawyers' 
advice, in the development of policy and regulations and legislative 
proposals on an ongoing basis. That was the context in which the 
ITAR opinion was given. There was a working group; our views on 
the legal questions were requested at one point.
	We gave an opinion. The group continued to do its work. The 
problem is one that is still before us and we are still working on it.
The second sort of thing we do is to give final judgments on legal 
issues that arise in the execution of the laws. In that area, we 
consider that our function is essentially derivative of the Attorney 
General's basic statutory function of advising the heads of 
departments and the President on questions of law.
	The Attorney General has long taken the view that although his 
formal legal views on legal questions are not law in the statutory 
sense, it is appropriate that they be followed in the executive branch.

Mr. INGRAM. Maybe I am not clear then as to the distinction. You are 
saying that on the one hand you provide advice. Are there instances 
when you will make rulings that are binding upon the agencies.

Mr. FOY. Yes; there are.

Mr. INGRAM. How would one know, looking at an Office of Legal 
Counsel opinion, when one is binding and when one is not? This 
seems pretty clear on its face. The OLC is stating that the regulation 
is unconstitutional within the narrow grounds that you described.

Mr. FOY. It is still our view that if the regulation were applied in the 
broad class of cases that concerned us in that opinion, it would 
present very serious constitutional problems because in those cases 
it would impose a general licensing restriction on the dissemination 
of scientific ideas.


267

Mr. INGRAM. If a lawsuit were initiated involving the same question, 
would the department be bound to take that same position, or would 
the Civil Division feel that it would be able to reinterpret the 
question and defend the Government, taking the position opposite 
the OLC opinion?

Mr. FOY. If the Civil Division did not agree with us on the law, the 
question might well go to the Associate Attorney General or to the 
Attorney General himself and then a determination would be made. 
The Attorney General does not always have to agree with the Office 
of Legal Counsel.

Mr. INGRAM.. I understand.
	The opinion has never been made public, has it?

Mr. FOY. That is correct.

Mr. INGRAM. We are putting it into the record today. It is now a 
public document.
[The material follows:]

			     268

Assistant Attorney General
Office of Legal Counsel

			Department of Justice
			Washington, DC  20530

						11 May 78


		  MEMORANDUM TO DR. FRANK PRESS
		 Science Advisor to the President

Re: Constitutionality Under the First Amendment
    of ITAR Restrictions on Public Cryptography

The purpose of this memorandum is to discuss the constitutionality 
under the First Amendment of restrictions imposed by the 
International Traffic in Arms Regulation (ITAR), 22 C.F.R. s. 121 et 
seq. (1977), the regulation implementing s. 38 of the Arms Export 
Control Act, 22 U.S.C.A. s. 2778 (1977), on dissemination of 
cryptographic information developed independent of government 
supervision or support by scientists and mathematicians in the 
private sector.[n.1] Our discussion is confined to the applicability of 
the regulation to the speech elements of public cryptography, and 
does not address the validity of the general regulatory controls over 
exports of arms and related items. We have undertaken our review 
of the First Amendment issues raised by the ITAR as an outgrowth of 
our role in implementing Presidential Directive NSC-24. [n.2]

=========
[n.1] The cryptographic research and development of scientists and 
mathematicians in the private sector is known as "public 
cryptography." As you know, the serious concern expressed by the 
academic community over government controls of public 
cryptography, see, e.g., 197 Science 1345 (Sept. 30, 1977), led the 
Senate Select Committee on Intelligence to conduct a recently 
concluded study of certain aspects of the field.

[n.2] Our research into the First Amendment issues raised by 
government regulation of public cryptography led tangentially into 
broader issues of governmental control over dissemination of 
technical data. Those questions are numerous, complex, and 
deserving of extensive study, but are beyond the scope of this 
memorandum.
==========

                    270
[[the subcommittee report numbered pages 269 and 270 out of order.]]

     ITAR Provisions and Statutory Authority

Under the ITAR, exports of articles designated on the United States 
Munitions List as "arms, ammunition, and implements of war" must 
be licensed by the Department of State. 22 C.F.R. s. 123, 125. 
Cryptographic devices are included on the list, 22 C.F.R. s. 121.01, 
Category XIII, as are related classified and unclassified technical 
data, Category XVII, Category XVIII. It is this control over the export 
of unclassified technical data which raises the principal constitutional 
questions under the ITAR. [n.3]

The broad definition of the term technical data in the ITAR includes:

Any unclassified information that can be used, or be adapted for use, 
in the design, production, manufacture, repair, overhaul, processing, 
engineering, development, operation, maintenance, or reconstruction 
of arms, ammunition and implements of war on the U.S. Munitions 
List.

22 C.F.R. s. 125.01. The definition of the term "export" is equally 
broad. Under s. 125.03 of the ITAR an export of technical data takes 
place:

     Whenever technical data is inter alia, mailed or shipped outside
     the United States, carried by hand outside the United States,
     disclosed through visits abroad by American citizens (including

=========
[n.3] Unclassified technical data would generally encompass only 
privately developed, nongovernmental cryptographic research. It is 
our understanding that government-sponsored cryptographic 
research traditionally has been classified. The only unclassified 
government cryptographic information of which we are aware is the 
Data Encryption Standard (DES) algorithm. The DES was developed for 
public use by IBM with National Security Agency assistance and 
published in the Federal Register by the National Bureau of 
Standards.
=========
			- 2 -

			 269

     participation in briefings and symposia) and disclosed to foreign
     nationals in the United States (including plant visits and
     participation in briefings and symposia).

Thus ITAR requires licensing of any communication of cryptographic 
information, [n.4] whether developed by the government or by 
private researchers, which reaches a foreign national. [n.5]

The standards governing license denial are set out in s. 123.05. The 
Department of State may deny, revoke, suspend or amend a license:

     whenever the Department deems such action to be advisable in
     furtherance of (l) world peace; (2) the security of the United
     States; (3) the foreign policy of the United States; or (4)
     whenever the Department has reason to believe that section 414 of
     the Mutual Security Act of 1954, as amended, or any regulation
     contained in this subchapter shall have been violated.

Upon any adverse decision, the applicant may present additional 
information and obtain a review of the case by the

==========
[n.4] The ITAR does exempt from the licensing requirement 
unclassified technical data available in published form. 22 C.F.R. s. 
125.11(a).  The scope of that exemption is somewhat unclear, 
although it does appear that the burden of ascertaining the ITAR 
status of possibly exempt information is on the individual seeking 
publication. See 22 C.F.R. s. 125 n.3. In order to claim the exemption, 
an "exporter" must comply with certain certification procedures. 22 
C.F.R. s. 125.22.

[n.5] For example, in one instance the Office of Munitions Control, the 
office in the State Department which administers the ITAR, refused 
to issue licenses to a group of scientists preparing to address a 
conference on space technology in Madrid. The scientists, who had 
already arrived in Spain, were refused permission to deliver papers 
at the symposium on the subject of rocket propulsion and re-entry 
problems of space vehicles. Note, Arms Control-State Department 
Regulation of Exports of Technical Data Relating to Munitions Held to 
Encompass General Knowledge and Experience, 9 N.Y.U. Int'l Law J. 
91, 101 (1976).
===========
			- 3 -

			 271

Department.  S. 123.05(c).  No further review is provided.

Nearly all of the present provisions of the ITAR were originally 
promulgated under s. 414 of the Mutual Security Act of 1954 
(former 22 U.S.C. s. 1934). That statute gave the President broad 
authority to identify and control the export of arms, ammunition, and 
implements of war, including related technical data, in the interest of 
the security and foreign policy of the United States. Congress recently 
substituted for that statute a new s. 38 of the Arms Export Control 
Act, 22 U.S.C.A. s. 2778 (1977), as amended, 22 U.S.C.A. s. 2778 
(Supp. 3 1977). This statute substitutes the term "defense articles 
and defense services" for the term "arms, ammunition, and 
implements of war." [n.6] The President delegated his authority 
under both statutes to the Secretary of State and Secretary of 
Defense.  Exec. Order No. 11,958, 42 Fed. Reg. 4311 (1977), reprinted 
in 22 U.S.C.A. s. 2778 (Supp. 1 1977); Exec. Order No. 10,973, 3 C.F.R. 
493 (Supp. 1964).  A willful violation of s. 38 of the Arms Export 
Control Act or any regulation thereunder is punishable by a fine up 
to $100,000, imprisonment up to two years, or both. 22 U.S.C.A. s. 
2778(c).[n.7]

==========
[n.6] The ITAR has not yet been amended to reflect the statutory 
change.  We understand, however, that the Department of State has 
nearly completed a draft revision of the ITAR.  It is our 
understanding that the revision is not intended to make any major 
substantive changes in the ITAR, but rather to update and clarify the 
regulatory language.

[n.7] Although the focus of this memorandum is on the First 
Amendment issues raised by the ITAR, we feel that one comment 
about the breadth of the two statutes is in order.  It is by no means 
clear from the language or legislative history of either statute that 
Congress intended that the President regulate noncommercial 
dissemination of information, or considered the problems such 
regulation would engender.  We therefore have some doubt whether 
s. 38 of the Arms Export Control Act provides adequate authorization 
for the broad controls over public cryptography which the ITAR 
imposes.

			      - 4 -

			       272

          The First Amendment Issues

The ITAR requirement of a license as a prerequisite to "exports" of 
cryptographic information clearly raises First Amendment questions 
of prior restraint.[n.8] As far as we have been able to determine, the 
First Amendment implications of the ITAR have received scant 
judicial attention.

The Ninth Circuit presently has a case under consideration which 
squarely presents a First Amendment challenge to the ITAR and 
could serve as a vehicle for the first comprehensive judicial analysis 
of its constitutionality. In that case, United States v. Edler, No. 76-
3370, the defendants, Edler Industries, Inc. and Vernon Edler its 
president, were charged with exporting without a license technical 
data and assistance relating to the fabrication of missile components. 
Although the State Department had denied defendants an export 
license to provide technical data and assistance to a French aerospace 
firm, the government alleged that defendants nonetheless delivered 
data and information to the French during meetings in both France 
and the United States. Defendants were tried before a Jury and found 
guilty. The trial court, the United States District Court for the Central 
District of California, did not issue an opinion in the case. On appeal, 
the defendants contend that the ITAR is both overbroad and 
establishes an unconstitutional prior restraint. The government's 
rejoinder to those claims is that the ITAR licensing provisions involve 
conduct not speech and that any effect upon First Amendment 
freedoms is merely incidental

=========
[n.8] In addition, the regulatory provisions present questions of 
overbreadth and vagueness. "Overbreadth" is a First Amendment 
doctrine invalidating statutes which encompass, in a substantial 
number of their applications, both protected and unprotected 
activity. The "vagueness" concept, on the other hand, originally 
derives from the due process guarantee, and applies where language 
of a statute is insufficiently clear to provide notice of the activity 
prohibited. The same statute or regulation may raise overlapping 
questions under both doctrines.
=========
				- 5 -

				   273

and therefore valid. We anticipate that the resolution of these issues 
by the Ninth Circuit may provide substantial guidance as to the First 
Amendment implications of the ITAR. [n.9]

The only published decision addressing a First Amendment challenge 
to the ITAR of which we are aware is United States v. Donas-Botto, 
363 F.Supp. 191 (E.D. Mich. 1973), aff'd sub nom. United States v. 
Van Hee, 531 F.2d 352 (6th Cir. 1976). The defendants in that case 
were charged with conspiracy to export technical data concerning a 
Munitions List item without first obtaining an export license or 
written State Department approval. The exports by the defendants 
both of blueprints and of their technical knowledge concerning an 
armored amphibious vehicle were alleged to be in violation of s. 414 
of the Mutual Security Act and the ITAR. In a motion to dismiss the 
indictments, defendants contended that inclusion of technical 
knowledge within the statute violated the First Amendment. The 
trial court disposed of that contention summarily, stating:

     [W]hen matters of foreign policy are involved the government has
     the constitutional authority to prohibit individuals from
     divulging "technical data" related to implements of war to foreign
     governments.

363 F. Supp. at 194. The Sixth Circuit upheld the conviction of one of 
the defendants without reaching any First Amendment questions 
since none was presented on appeal. [n.10]

The First Amendment analysis of the ITAR in the case thus is limited 
to a paragraph in the district court's opinion. In reaching the 
conclusion that the prosecutions did not violate the First 
Amendment, that court relied upon two Espionage Act decisions, 
Gorin v. United States, 312 U.S.

=========
[n.9] We understand that the case was argued this past March.

[n.10] The court did agree with the trial judge that the ample scope 
of the term "technical data" in the ITAR encompassed unwritten 
technical knowledge. 531 F.2d at 537.
=========
			      - 6 -

			      274

19 (1941), and United States v. Rosenberg. 198 F.2d 583 (2d Cir.), 
cert. denied, 344 U.S. 838 (1952). While those cases establish that the 
First Amendment does not bar prosecutions for disclosing national 
defense information to a foreign country, they by no means resolve 
the prior restraint question. [n.11]

A decision in a somewhat analogous area, the use of secrecy 
agreements by government agencies as a means of protecting against 
the unauthorized disclosure of information by present or former 
employees, while not directly applicable to the First Amendment 
questions we confront under the ITAR, is helpful for its discussion of 
government's power to control the dissemination of government 
information. That case, United States v. Marchetti, 466 F.2d 1309 
(4th Cir.), cert. denied, 409 U.S. 1063 (1972), after remand, Alfred A. 
Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 
992 (1975), involved an action for an injunction brought by the 
United States to prevent a former CIA agent from publishing certain 
information he had obtained as a result of his CIA employment. The 
court held that the particular secrecy agreement was valid and 
enforceable in spite of Marchetti's First Amendment objections, but 
observed that:

     The First Amendment limits the extent to which the United States,
     contractually or otherwise, may impose secrecy agreements upon its
     employees and enforce them with a system of prior censorship. It
     precludes such restraints with respect to information which is
     unclassified or officially disclosed.

Id. at 1313. The general principle we derive from the case is that a 
prior restraint on disclosure of information generated by or obtained 
from the government is justifiable under the First Amendment only 
to the extent that the information is properly classified or 
classifiable.

=========
[n.11] It is not clear from reading the district court's opinion on what 
First Amendment ground or grounds the defendants based their 
unsuccessful motion to dismiss.
=========

				- 7 -

				   275

Our research into areas in which the government has restricted 
disclosure of nongovernmental information provided little additional 
guidance. Perhaps the closest analog to controls over public 
cryptography are the controls over atomic energy research. [n.12] 
Under the Atomic Energy Act of 1954, 42 U.S.C. S 2011 et seq. 
(1970), all atomic energy information, whether developed by the 
government or by private researchers, is automatically classified at 
its creation and subjected to strict nondisclosure controls. [n.13] 
Although neither the Atomic Energy Act nor its accompanying 
regulations establish formal procedures for prior review of proposed 
atomic energy publications, the Atomic Energy Commission (whose 
functions are now divided

=========
[n.12] Atomic energy research is similar in a number of ways to 
cryptographic research. Development in both fields has been 
dominated by government.  The results of government created or 
sponsored research in both fields have been automatically classified 
because of the imminent danger to national security flowing from 
disclosure. Yet meaningful research in the fields may be done 
without access to government information. The results of both atomic 
energy and cryptographic research have significant nongovernmental 
uses in addition to military use. The principal difference between the 
fields is that many atomic energy researchers must depend upon the 
government to obtain the radioactive source materials necessary in 
their research. Cryptographers, however, need only obtain access to 
an adequate computer.

[n.13]  See Green, Information Control and Atomic Power 
Development, 21 Law and Contemporary Problems 91 (1956) 
Newman, Control of Information Related to Atomic Energy, 56 Yale 
L.J. 769 (1947). The Atomic Energy Act uses the term "Restricted 
Data" to describe information which the government believes 
requires protection in the interest of national security. "Restricted 
data" is defined in 42 U.S.C. s. 2014(4). The information control 
provisions of the Act are set out at 42 U.S.C. ss. 2161-2164.
=========
			      - 8 -

			      276

between the Nuclear Regulatory Commission and the Department of 
Energy) has been empowered to maintain control over publications 
through threat of injunction or of heavy criminal penalties, two 
potent enforcement tools provided under the Act. 42 U.S.C. ss. 2271-
2277, 2280. It does not seem, however, that the broad information 
controls of the Atomic Energy Act have ever been challenged on First 
Amendment grounds. Our search for judicial decisions in other areas 
in which the government has imposed controls over the flow of 
privately generated information was equally unavailing. [n.14]

In assessing the constitutionality of the ITAR restrictions on the 
speech elements of public cryptography we therefore have turned to 
Supreme Court decisions enunciating general First Amendment 
principles. It is well established that prior restraints on publication 
are permissible only in extremely narrow circumstances and that the 
burden on the government of sustaining any such restraint is a 
heavy one. See, e.g., Nebraska Press Association v. Stuart, 427 U.S. 
539 (1976); New York Times Co. v. United States, 403 U.S. 713 
(1971); Organization for a Better Austin v. Keefe, 402 U.S. 415 
(1971); Carroll v. Princess Anne, 393 U.S. 175 (1968); Near v. 
Minnesota, 283 U.S. 697 (1931). Even in those limited circumstances 
in which prior restraints have been deemed constitutionally 
permissible, they have been circumscribed by specific, narrowly 
drawn standards for deciding whether to prohibit disclosure and by 
substantial procedural protections. Erznoznik v. City of Jacksonville, 
422 U.S. 205 (1975); Blount v. Rizzi, 400 U.S. 410 (1971); Freedman 
v. Maryland, 380 U.S. 51 (1965); Niemotko v. Maryland,

=========
[n.14] For example, it does not appear that the broad controls over 
exports of technical data and related information under the Export 
Administration Act of 1969, 50 U.S.C. App. s. 2401 et seq. (1970), and 
accompanying regulations have been judicially tested on First 
Amendment grounds. Nor have the provisions of the patent laws 
restricting patentability of inventions affecting national security, 35 
U.S.C. s. 181 et seq. (1970), nor governmental restrictions on 
communications with Rhodesia, 22 U.S.C. s. 287c (1970); Exec. Order 
No. 11,322
=========
			      - 9 -

			      277

340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951) Hague v. 
C.I.O., 307 U.S. 496 (1939). [n.15]

Even if it is assumed that the government's interest in regulating the 
flow of cryptographic information is sufficient to justify some form of 
prior review process, the existing ITAR provisions we think fall short 
of satisfying the strictures necessary to survive close scrutiny under 
the First Amendment. There are at least two fundamental flaws in 
the regulation as it is now drawn: first, the standards governing the 
issuance or denial of licenses are not sufficiently precise to guard 
against arbitrary and inconsistent administrative action; second, 
there is no mechanism established to provide prompt judicial review 
of State Department decisions barring disclosure. See, e.g., Blount v. 
Rizzi. supra; Freedman v. Maryland, supra; Hague v. C.I.O., supra. The 
cases make clear that before any restraint upon protected expression 
may become final it must be subjected to prompt judicial review in a 
proceeding in which the government will bear the burden of 
justifying its decisions. The burden of bringing a judicial proceeding 
cannot be imposed upon those desiring export licenses in these 
circumstances. The ITAR as presently written fails to contemplate 
this requirement. [n.16]

=========
[n.15]  In Freedman, 380 U.S. at 58-59, the Court summarized
the procedural protections necessary to sustain a scheme of prior 
review:
1. A valid final restraint may be imposed only upon a judicial 
determination;
2. The administrator of a licensing scheme must act within a 
specified brief period of time;
3. The administrator must be required either to issue a license or go 
to court to seek a restraint;
4. Any restraint imposed in advance of a final judicial determination 
on the merits must be limited to preservation of the status quo for 
the shortest period compatible with sound judicial resolution;
5. The licensing scheme must assure a prompt final judicial decision 
reviewing any interim and possibly erroneous denial of a license.

[n.16]  The government's argument to the Ninth Circuit in Edler,
that the impact of the ITAR upon protected communications is 
merely incidental, and that the ITAR should be viewed as
					 (Cont. on p. 11)
==========
			   - 10 -

			      278

For these reasons it is our conclusion that the present ITAR licensing 
scheme does not meet constitutional standards. There remains the 
more difficult question whether a licensing scheme covering either 
exports of or even purely domestic publications of cryptographic 
information might be devised consistent with the First Amendment. 
Recent Supreme Court decisions certainly suggest that the showing 
necessary to sustain a prior restraint on protected expression is an 
onerous one. The Court held in the Pentagon Papers case that the 
government's allegations of grave danger to the national security 
provided an insufficient foundation for enjoining disclosure by the 
Washington Post and the New York Times of classified documents 
concerning United States activities in Vietnam. New York Times Co. v. 
United States, supra. [n.17] The Court also invalidated prior restraints 
when justified by such strong interests as the right to fair trial, 
Nebraska Press Ass'n, supra, and the right of a homeowner to 
privacy, Organization for a Better Austin v. Keefe, supra. Such 
decisions raise a question whether a

=========
[n.16] (Cont.) a regulation of conduct not speech, deserves note. 
According to that argument, the less rigorous constitutional standard 
of United States v. O'Brien, 391 U.S. 367 (1968), would govern the 
validity of the ITAR. Although that may be true with respect to 
certain portions of the ITAR, even a cursory reading of the technical 
data provisions reveals that those portions of the ITAR are directed 
at communication. A more stringent constitutional analysis than the 
O'Brien test is therefore mandated.

[n.17] The Pentagon Papers case produced a total of ten opinions 
from the Court, a per curiam and nine separate opinions. All but 
Justices Black and Douglas appeared willing to accept prior restraints 
on the basis of danger to the national security in some circumstances. 
There was, however, no agreement among the Justices on the 
appropriate standard. Justice Brennan stated his view that a prior 
restraint on publication was justified only upon:

"proof that publication must inevitably, directly, and immediately 
cause the occurrence of an event kindred to imperiling the safety of 
a transport already at sea. . . ." (Cont. on p. 12)
=========
			- 11 -

			 279

generalized claim of threat to national security from publication of 
cryptographic information would constitute an adequate basis for 
establishing a prior restraint. Nonetheless, it is important to keep in 
mind that the Court has consistently rejected the proposition that 
prior restraints can never be employed. See, e.g., Nebraska Press 
Ass'n, supra at 570. For example, at least where properly classified 
government information is involved, a prior review requirement 
may be permissible. United States v. Marchetti, supra.

In evaluating the conflicting First Amendment and national security 
interests presented by prior restraints on public cryptography, we 
have focused on the basic values which the First Amendment 
guarantees. At the core of the First Amendment is the right of 
individuals freely to express political opinions ant beliefs and to 
criticize the operations of government. See, e.g., Landmark 
Communications v. Virginia, 46 U.S.L.W. 4389, 4392 (May 1, 1978); 
Bucklev v. Valeo, 424 U.S. 1, 14 (1976); Mills v. Alabama, 384 U.S. 
214, 218 (1966). Adoption of the Amendment reflected a "profound 
national commitment to the principle that debate on public issues 
should be uninhibited, robust, and wide-open," New York Times v. 
Sullivan, 376 U.S. 254, 270 (1964), and was intended in part to 
prevent use of seditious libel laws to stifle discussion of information 
embarrassing to the government. New York Times Co. v. United 
States, supra at 724 (concurring opinion of Mr. Justice Douglas).

Prior restraints pose special and very serious threats to open 
discussion of questions of public interest. "If it can be said that a 
threat of criminal or civil sanctions after publication 'chills' speech, 
prior restraint 'freezes' it at least for the time." Nebraska Press Ass'n, 
supra at 559.

========
[n.17] (Cont.) 403 U.S. at 726-27. Justice Stewart, with whom Justice 
White concurred, suggested that a prior restraint would be 
permissible only if disclosure would "surely result in direct, 
immediate and irreparable damage to our Nation or its people." Id. at 
730. Several other Justices declined, given the facts and procedural 
posture of the case, to formulate a standard.
=========
			      - 12 -

			      280

Since views on governmental operations or decisions often must be 
aired promptly to have any real effect, even a temporary delay in 
communication may have the effect of severely diluting "uninhibited, 
robust, and wide-open" debate. And protection of any governmental 
interest may usually be accomplished by less restrictive means. One 
avenue generally available to the government, and cited by Supreme 
Court as the most appropriate antedote, is to counter public 
disclosures or criticisms with publication of its own views. See. e.g., 
Whitney v. California, 274 U.S. 357, 375 (1927) (concurring opinion 
of Mr. Justice Brandeis).

The effect of a prior restraint on cryptographic information, however, 
differs significantly from classic restraints on political speech. 
Cryptography is a highly specialized field with an audience limited to 
a fairly select group of scientists and mathematicians. The concepts 
and techniques which public cryptographers seek to express in 
connection with their research would not appear to have the same 
topical content as ideas about political, economic or social issues. A 
temporary delay in communicating the results of or ideas about 
cryptographic research therefore would probably not deprive the 
subsequent publication of its full impact.

Cryptographic information is, moreover, a category of matter "which 
is both vital and vulnerable to an almost unique degree." [n.18]  Once 
cryptographic information is disclosed, the damage to the 
government's interest in protecting

==========
[n.18] New York Times Co. v. United States, 403 U.S. 713, 736 n. 7 
quoting H.R. Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). That report 
pertains to the bill which became 18 U.S.C. s. 798, the criminal 
statute prohibiting disclosure of information concerning the 
cryptographic systems and communications intelligence activities of 
the United States. Section 798 does not reach disclosure of 
information published by public cryptographers, as its coverage is 
restricted to classified information. Classified information by 
definition is information in which the government has some 
proprietary interest. See s. 1(b) of the May 3, 1978 draft of the 
Executive Order on national security proposed to replace Executive 
Order 11,652; cf. 22 C.F.R. s. 125.02.
==========
			      - 13 -

			      281

national security is done and may not be cured. Publication Of 
cryptographic information thus may present the rare situation in 
which "more speech" is not an alternative remedy to silence. [n.19] 
See Whitney v. California, supra at 376 (concurring opinion of Mr. 
Justice Brandeis).

Given the highly specialized nature of cryptographic information and 
its potential for seriously and irremediably impairing the national 
security, it is our opinion that a licensing scheme requiring 
prepublication submission of cryptographic information might 
overcome the strong constitutional presumption against prior 
restraints. Any such scheme must, as we have said, provide clear, 
narrowly defined standards and procedural safeguards to prevent 
abuse.

While a detailed discussion of the specific provisions and procedures 
of a valid scheme of prior review of cryptographic information or of 
its practical and political feasibility is beyond the scope of this 
memorandum, some

==========
[n.19] In stressing the differences between cryptographic 
information and other forms of expression we do not mean to imply 
that the protections of the First Amendment are not applicable to 
cryptographic information or that they are confined to the exposition 
of ideas. See Winters v. New York, 333 U.S. 507, 510 (1948). We 
recognize that the scope of the amendment is broad.  It encompasses, 
for example, purely commercial speech, Virginia State Board of 
Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748 
(1976), and communicative conduct, Cohen v. California 403 U.S. 15 
(1971). We believe, however, that the extent of First Amendment 
protection may vary depending upon the nature of communication at 
issue. It is established in the area of commercial speech that greater 
governmental regulation may be tolerated due to the special 
attributes of that form of speech. Virginia State Board of Pharmacy v. 
Virginia Citizens Consumer Council, supra at 770-71 and n.24. Speech 
in the labor context also presents special First Amendment 
considerations. See e.g. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 
(1969). And obscene communications have received specialized 
treatment from the courts. See, e.g., Roth v. United States, 354 U.S. 
476 (1957).
==========
			      - 14 -

			      282

general observations are in order. First, we wish to emphasize our 
doubts that the executive branch may validly provide for licensing or 
prior review of exports of cryptographic information without more 
explicit Congressional authorization. The scope of the existing 
delegation of authority from Congress to the President, as we note 
above, is somewhat unclear. Before imposing a prior restraint on 
exports of public cryptographic information, we believe that a more 
clear cut indication of Congressional judgment concerning the need 
for such a measure is in order. See United States v. Robel, 389 U.S. 
248, 26Y (1967) (concurring opinion of Mr. Justice Brennan); cf. 
Yakus v. United States, 321 U.S. 414 (1944).

Second, further Congressional authorization would obviously be 
necessary in order to extend governmental controls to domestic as 
well as foreign disclosures of public cryptographic information. Such 
an extension might well be necessary to protect valuable 
cryptographic information effectively. Indeed, limiting controls to 
exports while permitting unregulated domestic publication of 
cryptographic research would appear to undermine substantially the 
government's position that disclosure of cryptographic information 
presents a serious and irremediable threat to national security. [n.20]

=========
[n.20] A question which would arise from complete governmental 
control over cryptographic information is whether the government 
would be required under the Fifth Amendment to pay just 
compensation for the ideas it had effectively "condemned." For 
example, the patent and invention provisions of the Atomic Energy 
Act require the government to pay for patents which it revokes or 
declares to be affected with the public interest. 42 U.S.C. 55 2181-
2190. A cryptographic algorithm, however, would not appear to be a 
patentable process. See Gottschalk v. Benson, 409 U.S. 63 (1972). And 
it is unresolved whether copyright protection is available for 
computer software. See Nimmer on Copyright, s. 13.1 (Supp. 1976). 
We are therefore uncertain as to the status of cryptographic ideas 
under the Fifth Amendment.
==========
                         - 15 -

			 283

Third, no final restraint on disclosure may be imposed without a 
judicial determination. We recognize that a requirement of judicial 
review presents substantial problems. The proof necessary in order 
to demonstrate to a judge that highly technical cryptographic 
information must be withheld from publication because of the 
overriding danger to national security might be burdensome and 
might itself endanger the secrecy of that information. It is our 
opinion, however, that any system which failed to impose the burden 
on government of seeking judicial review would not be 
constitutional. [n.21] See, e.g., Blount v. Rizzi, supra.

Finally, any scheme for prior review of cryptographic information 
should define as narrowly and precisely as possible both the class of 
information which the government must review to identify serious 
threats to the national security and the class of information which 
the government must withhold.[n.22] The scheme clearly should 
exempt from a

=========
[n.21] The threat to national security posed by a judicial review 
procedure could be reduced substantially by conducting the review 
in camera. See Alfred A. Knopf. Inc. v. Colby. 509 F.2d 1362 (4th 
Cir.),cert. denied. 421 U.S. 992 (1975); cf. 5 U.S.C. 552(a)(4)(B) (Supp. 
1975) (in camera review provision of the Freedom of Information 
Act). The Supreme Court, in any event, has been unimpressed by 
arguments that disclosure of sensitive national security information 
to a court raises such serious problems of public dissemination that 
exemption from constitutional requirements is appropriate. See 
United States v. U.S. District Court, 407 U.S. 297 (1972).

[n.22] In other words, we assume that the information submitted 
under the scheme would not be coextensive with the information 
withheld. We note, however, that the authority of the government to 
require prepublication submission of information which is neither 
classified nor classifiable is unsettled. That issue is posed in the suit 
recently filed by the Department of Justice in the United States 
District Court for the Eastern District of Virginia against former 
employee Frank Snepp for breach of his secrecy agreement. United 
States v. Snepp, Civil Action No. 78-92-A.
==========
                       - 16 -

			 284

submission requirement any information, such as that which is 
publicly available or which poses no substantial security threat, that 
the government has no legitimate interest in keeping secret. [n.23] 
Failure to draft provisions narrowly might well invite overbreadth 
challenges for inclusion of protected communication. See, e.g., NAACP 
v. Alabama, 357 U.S. 449 (1958). And a precisely drawn scheme is 
also necessary to avoid objections of vagueness. See, e.g., Smith v. 
Goguen, 415 U.S. 566 (1974). [n.24]

In conclusion, it is our view that the existing provisions of the ITAR 
are unconstitutional insofar as they establish a prior restraint on 
disclosure of cryptographic ideas and information developed by 
scientists and mathematicians in the private sector. We believe, 
however, that a prepublication review requirement for cryptographic 
information might meet First Amendment standards if it provided 
necessary procedural safeguards and precisely drawn guidelines.


				(signed) John M. Harmon
				John M. Harmon
			  Assistant Attorney General
			   Office of Legal Counsel

==========
[n.23] As we noted above, at n.4, supra, the present ITAR provisions 
attempt to exempt publicly available information. But the scope of 
that exemption and the procedures for invoking it, particularly with 
respect to oral communications, are somewhat clear [sic].

[n.24] Although we mention questions of overbreadth and vagueness 
raised by the technical data provisions of the ITAR previously in this 
memorandum, we have not attempted to identify and analyze 
particular problems for several reasons. First, our opinion that a 
prior restraint on public cryptography might survive First 
Amendment scrutiny is a limited one and does not purport to apply 
to the many other types of technical data covered by the ITAR. 
Second, we believe that public cryptography presents special 
considerations warranting separate treatment from other forms of 
technical data, and that a precise and narrow regulation or statute 
limited to cryptography would be more likely to receive considered 
judicial attention. Finally, we are uncertain whether the present 
legislative authority for the technical data provisions of the ITAR is 
adequate.
==========
				- 17 -

			         285

Mr. INGRAM. How would I know as a private litigant somehow 
ensnarled in the ITAR regulations that I am being involved in a 
matter that the Justice Department, 2 years previously, has declared 
unconstitutional?

Mr. FOY. The Office of Legal Counsel has undertaken to publish a 
great many of its opinions. However, we have traditionally regarded 
our function as one of giving lawyers' advice to people who should be 
encouraged to come to us for advice. We flatter ourselves -- I hope 
there is some basis for it -- that on the whole our advice has a 
beneficial effect on the performance of executive functions.
	Because of that role, we do not generally publish our opinions 
unless our clients -- if I may use that term -- approve. In other words, 
there is a rather imperfect analogy to the role performed by a 
private lawyer for a private client. The private lawyer would not 
consider himself free to tell the world the legal advice he gave his 
client yesterday, unless the client said it was all right. That is more 
or less the way we proceed in the Office of Legal Counsel.
	Nevertheless, for our own part we encourage publication. In 
fact, we embarked on a publication project so that now, in addition to 
the formal opinions of the Attorney General, we will print formal 
opinions of the Office of Legal Counsel, which to some extent in 
recent decades have supplanted the Attorney General's opinion as 
the source of authoritative legal views from the Justice Department.

Mr. INGRAM. With the chairman's indulgence, that raises two final 
questions. You have this 2-year-old opinion finding the regulations 
unconstitutional. There has been no change in the regulations. Is 
there any obligation on the Department at some point to go to the 
President to force the issue and to tell the President that one of his 
executive agencies is currently operating in violation of the 
Constitution?

Mr. FOY. Yes. I think there very well may be an obligation on the 
Department to go to the President, if we think that our opinion is not 
being complied with. As I have indicated to you, after our opinion 
was issued, two things happened which indicated that the regulation 
was going to be interpreted and applied in a narrow and 
constitutional fashion.

Mr. INGRAM. We still have the Hammond letter which indicates his 
view on behalf of the Department that there was need to reexamine 
the regulation. The testimony you are giving today is somewhat 
contradictory to that point

Mr. FOY. Mr. Hammond is here. With the committee's permission, he 
may well want to defend his position on this point.

Mr. INGRAM. I think the committee would welcome a dispute 
between two attorneys from the Office of Legal Counsel. [Laughter.]

Mr. HAMMOND. Thank you. My name is Larry Hammond. I am the 
Deputy Assistant Attorney General in the Office of Legal Counsel and 
the author of the letter that you have there in front of you.
	The understanding that we have at the Office of Legal Counsel 
is that both well before and since the opinion in May of 1978 and our 
subsequent letter, the State Department, the National Security 
Council, and Frank Press' office have had under consideration the


286

larger problem of what to do about the exportation of these kind of 
materials.
	We have also been informed that no action has been taken, or 
has been threatened, by the State Department that would be in any 
way inconsistent with the opinion that we have given and with my 
subsequent letter. That is, the State Department has not tried to bar 
the giving of speeches, the writing of articles, or any of the things 
that we thought presented the most serious first amendment 
problem.
	I think though that your comment is a fair one. There is no 
administrative mechanism in the Department of Justice or in the 
Office of Legal Counsel to go about following up on our legal views. 
We do not have a 30-day rule or a 10-day followup, or anything like 
that. We assume and experience has taught us that our assumption is 
a fair one -- that our opinions and views will be treated seriously.
	We have not had a case in this administration, at least, and I 
am not aware of one in earlier administrations, in which an agency 
has simply disregarded the views of the Attorney General or the 
views of his Office of Legal Counsel.
	I think your subcommittee's interest in this issue is in good 
part responsible for the State Department now having issued a 
clarification of the regulation. It is possible, and I think a reasonable 
case could be made for the proposition, that we should have done 
something aggressively ourselves at an earlier point to provide the 
added assurance, but in light of the representations made to us that 
it was not going to be applied, we simply did not do it.

Mr. INGRAM.  Would it be fair to ask the office to review all of its 
opinions in the last 2 or 3 years where regulations have been found 
unconstitutional to report back to the subcommittee the current 
status of those regulations? That is, whether they are still viewed by 
the Department as legal and binding or whether there is or has been 
effort to rewrite the regulations the Department has, in its advice 
function, declared unconstitutional.
	I would also be interested in whether or not there can be 
further clarification as to whether or not the opinion is viewed as a 
binding one on behalf of the agency or merely advisory.

Mr. HAMMOND.  I would be pleased to do that. I think our response 
would be that there is not a case in which the Office of Legal Counsel 
has found a regulation to be unconstitutional in which that advice 
has been disregarded. I will look, but I think that is what we will 
find.
[The material follows:]

                   287

              DEPARTMENT OF JUSTICE


                                   April 1, 1980

Honorable Richardson Preyer
U.S. House of Representatives
2344 Rayburn House Office Building
Washington, D. C.  20515

Dear Mr. Chairman:

During the hearing held on February 28, 1980, before the 
Subcommittee on Government Information and Individual Rights, 
counsel for the committee, Mr. Ingram asked my colleague, Mr. 
Hammond, whether the Office of Legal Counsel could identify for the 
committee any government regulations found to be unconstitutional 
by this Office which are still in effect in an unrevised form. The 
question came in the context of a discussion regarding our opinion on 
the constitutional questions presented by the so-called ITAR 
regulation. Mr. Hammond said that he would review the matter and 
advise the committee whether there has been any instance during 
this Administration in which our advice regarding the 
constitutionality of a regulation has been disregarded.

We have reviewed our files. Putting the ITAR question to one side, 
we are unaware of any instance during this Administration in which 
our advice regarding the constitutionality of a regulation in force has 
been disregarded. I might add that our knowledge of what agencies 
do in response to our opinions is not always perfect.

I hope that this information will be of assistance to the committee.

                                	Sincerely,


                         		/s/ H. Miles Foy
                           	Office of Legal Counsel


288

Mr. HAMMOND. I should add though that there are often cases that 
come to us, not unlike the ITAR situation, in which the question at 
bottom is really not whether the regulation is Constitutional but 
whether the statute is constitutional. That always presents a very 
difficult problem for the Department of Justice.
	If you were to ask Mr. Foy or myself: What is our best view of 
the Constitution on whether this particular statute is 
unconstitutional? We might well say: Our best view is that it is 
unconstitutional. On the other hand, the invariable practice of our 
Department, and one that I believe is correct, is that if Congress 
writes a law we are obligated to enforce that law, even though our 
better view is that it may be unconstitutional, unless it is so patently 
unconstitutional and does such a disservice to the rights of 
individuals that we just in good conscience cannot find a way to 
support.
	There are those kinds of cases. There are cases in which we 
have said: Gee, this looks like it is probably unconstitutional. 
However, we have defended it anyway.

Mr. INGRAM.   As Mr. Foy explained in his testimony, you are in the 
difficult position of having to bite your tongue when you find a 
statute to be unconstitutional, but you are forced under current 
procedures to represent the Congress in court. Perhaps we are 
building a record here for possible consideration of a House counsel, 
somewhat comparable to the one currently set up in the Senate.
	Let me make one final observation. You did mention, as I 
understand it, the practice soon to be initiated of publishing Office of 
Legal Counsel opinions. This is terribly important. The number of 
Attorney General opinions over the years has declined. The Office of 
Legal Counsel opinions have increased in importance.
	However, as I understand it, from what you have said this 
morning, you will only be publishing those opinions which have been 
released by the client agency and only with their approval to publish 
the opinion.
	Are we creating an even worse situation than the current one, 
of secret law involved in OLC opinions? Are we, in effect, presenting 
a very one-sided view or volume of OLC opinions, in other words 
those which support the agency which you are free to release? Then 
in instances where the agency has received advice from you that it 
finds unfavorable, it will choose not to release the opinion.

Mr. FOY. I think that that may be a problem. I would say, however, 
that the instances are relatively rare in which there would be two 
OLC opinions dealing with the same subject matter, one of which 
would be favorable to the agency and one of which would not be, so 
that if you released one and not the other you would give a 
misleading view of the OLC's view of the legal point at issue. Either 
both of them would not be published or both of them would be 
published.
	Nevertheless, I think you did put your finger on a problem.

Mr. INGRAM. We had earlier this week the Snepp opinion issued by 
the Supreme Court. Has the Office of Legal Counsel been asked or will 
it advise the executive agencies on the Office's interpretation of that 
decision? if so, what form might that take?


289

Mr. FOY. We may be asked at some future date. To my knowledge, 
we have not been asked yet. We are still reading the opinion 
ourselves.

Mr. INGRAM. Would you again be in a position of providing advice on 
that where it would not be made public?

Mr. HAMMOND. I would like to add to what Mr. FOY has already said. 
Snepp is a good example. There may well be -- although I have not 
seen any yet -- efforts for our intelligence agencies and for others in 
nonintelligence entities to wish to develop contracts for employees to 
sign or administrative guidelines for employees to be bound by that 
would impose the kinds of restrictions that the Court found in the 
Snepp case.
	If that happened, our Office would probably be involved in it 
and would be so in an advisory function. We would be saying: Well, 
this is what the opinion seems to allow. We might go well beyond it 
and say, even though the opinion allows it there are serious first 
amendment ramifications of any action in this area. That is the kind 
of opinions we would be asked for. They would, at least while the 
decisionmaking process is afloat, probably not be made public.
A very good example of that is -

Mr. INGRAM. Do you see any irony in that situation?

Mr. HAMMOND. I guess I do see the irony.

Mr. INGRAM. Over the years -- I will just summarize, Mr. Chairman. 
We have had before this subcommittee a number of bills referred to 
variously as "whistle blower" bills, which would provide a one liner 
in the Freedom of Information Act stating that no employee could be 
sanctioned for releasing material available under the requirements 
of the Freedom of Information Act.
	We had long thought that such a one liner was not necessary 
because the reading of the act, we thought, would make that clear. 
Perhaps the Snepp decision has thrown some doubt on that, given 
the Court's broad confidential material wording that they included. It 
might be appropriate to dust off that earlier legislation and have a 
look see.
	Thank you, Mr. Chairman.

Mr. PREYER. Thank you.
	We appreciate your being here today. Some very interesting 
questions have been raised in this area. I do not think the Edler 
decision has ended all of them. That is about the only judicial 
guidance we have. We will look forward to working out some of 
these problems with you in the future.

[End of excerpt]
